Paying Your Marketers Properly – Revisiting the Rabbit Hole

© 2012 Paul Hirsch

Update: 12-06-2012 – This Article Series is not forgotten, it is still “in-the-works!” In our desire to compile an authoritative basis for our opinion on this matter we are still reviewing a massive amount of documents, from Legislative History of Congress all the way to state court litigation documents which address this topic. We have read most of it and have “digested” what we have read. However the creation process is taking a backseat to ongoing litigation. We are simply waiting for things to slow down a bit before we delve into writing this article series – after all client needs come first!

Of course, if you have specific questions about a current situation or questions about what you want to do in terms of your marketing approaches, we are more than willing to advise you on a particular circumstance! If in doubt – ASK US!-

Paying Your Marketers Properly – Revisiting the Rabbit Hole

Introduction – Part 1 (of 5)

marketingAfter updating our website recently we have noticed that our article “Paying Your Marketers – Properly” and the issues covered within it have spurned many questions and comments both here on our site and from some of our clients. The health care industry is an ever-changing world, subject to ebb and flow of legislation, agency rules / regulations, court decisions and an ever-changing labor pool. Notably, Liz wrote this article almost ten years ago!

Many changes have occurred throughout the health care industry since the original article was written. Government agencies charged with oversight of the industry and its participants work differently then they did ten years ago. In fact, almost every facet of the industry has been affected by continual changes in the laws, rules, and regulations governing how agencies do business in this marketplace. It follows that the issue of paying marketers has changed also. Ultimately the crux of the original article remains in place, but none-the-less it deserves a fresh analysis.

One illustration of this change can be seen in the government’s focus (both on the state and federal levels) on strengthening and enforcing the prohibitions on fraud and abuse within the industry. The government’s new resolve in combating fraud and abuse has developed throughout many areas. One of the most visible examples of this new focus and resolve is the DOJ-HHS’s HEAT strike-teams, which actively combines and focuses the intelligence and resources of federal and state agencies towards the single inexorable goal of prosecuting businesses and people involved in Medicaid and Medicare fraud and abuse.

Moreover, beyond the health care industry itself, almost every industry (including health care) and every business, across the country, faces the perils and pitfalls of the changing environment of employer / employee relationships and employment laws. Federal and state agencies have promulgated new rules and regulations, and have adapted their methods and strategies in dealing with employment law. The “old-hat” areas of discrimination, retaliation, and harassment are as much of a concern as ever. However as technology advances and permeates the fabric of our society new questions are being raised such as: When can you run a criminal background check on a prospective employee? Can you ask a potential employee for their password to social media websites so you can better evaluate them? What are the limits you can place on employees’ use of social media both on the clock and off the clock (there is a surprising amount of controversy in this area particularly!)?

So how does all of this effect marketing strategies and payment structures for marketers in the health care industry?

In some ways many things are unchanged, but unfortunately that is not the whole story. Certain recent developments in the health care industry and employment law should give pause to health care providers when they decide to start or continue with marketing strategies and payment structures.

We have decided to start a multi-part series of articles which will shed new light on some old concepts, highlight certain techniques and approaches to structuring marketer training and payment, identify emerging issues and areas of concern, and suggest “functional adaptation methods” which can help health care businesses avoid potential pitfalls.

Please note: Many of the emerging issues about social media and employment law could be entire articles in and of themselves. So, this series will touch on some points of these emerging issues, but if there is interest in a more in-depth look we will consider putting together an article on these issues themselves.

Here are the planned segments:

Part 1: Introduction

Part 2: Health Care Laws (Anti-kickback and other federal rules & – Employee vs. Independent Contractor considerations)

Part 3: Employment Laws ( Fair Labor and Standards Act (FLSA) – wages paid and hours worked – payment structures – necessary documentation)

Part 4: Emerging Concerns

Part 5: “Functional Adaptation Methods” ®

(Please note regarding the phrase “functional adaptation methods:” some people might be looking for “best practices,” however we detest this catch phrase and purposefully choose to avoid it. As many successful business people can attest this phrase is one of the general corporate ear candy catch phrases which are in vogue. At the outset, this phrase in particular tends to over-simplify complex issues, because what might be best a best practice in one instance might not be what is best for every situation.)

What Can I Ask An Applicant?

© Elizabeth Zink-Pearson

applicantHiring employees is no longer a simple process of elimination or selection of the best applicant. In today’s legal climate, employers need to be equally concerned about what they ask applicants as well as what they fail to ask. The prudent employer should establish a well defined procedure for employee selection that includes steps for checking references and other qualifications and reflects the restrictions imposed by both state and federal law.

Hiring An Employee No Longer Means Fitting the Applicant into a Strictly Defined Position.

Employment applications and interviews are the primary methods of screening and eliminating unqualified or ill-suited persons from consideration for a position and as such can run afoul of the various state and federal anti-discrimination laws. Types of questions that have been found to unfairly discriminate include questions concerning arrests and conviction records. Additional problem areas for employment inquiries include age, sex or marital status, physical or emotional capacity, and even religious affiliation. With all these restrictions, how can an employer legally screen applicants for employment?

The anti-discrimination laws presume that all the answers to pre-employment questions will be used in making a hiring decision. In general, these law prohibit the use of job criteria or pre-employment questioning that disproportionally disqualify minorities, members of one sex, older persons, or disabled persons. Hiring employees no longer means fitting the employee into a strictly defined position. Rather employers must maintain a degree of flexibility in hiring, a willingness to accommodate individual applicants’ limitations, either real or “perceived” and either physical or emotional.

Hiring guidelines published by the Equal Employment Opportunity Commission, the EEOC, suggests establishing a job description for each position that outlines the primary responsibilities for the job, technically referred to as the “essential functions.” Applicants should be reviewed for qualifications that meet these essential functions. Any job criteria that could screen an applicant from eligibility employees must be directly “job-related” or justified as a business-necessity. Examples of necessary job related criteria include the ability to type or use a computer for a secretary position or a truck driver’s ability to drive an eighteen-wheel vehicle for a prolonged period. Example of criteria necessary for businesses are such things as licensor requirements for nurses or state and/or federal law requirements for criminal record checks or drug testing for certain employees.

In both the application and interview process, questions should reflect only the established job requirements, such as the working hours, job criteria, or the identified essential functions. General questions concerning the applicant’s age, marital status, physical health, religion or ethnic background should be avoided unless the subject matter of the question can be established as a necessary qualification.

Specific questions concerning an applicant’s ability to do a particular function should be posed only after an initial offer of employment is made, and, then the employer must be prepared to accommodate any disability, religious need, or other limitation. The overriding duty to accommodate such limitations is lifted only if the employer can prove that the accommodation would cause the company “undue hardship.”

Employers Need to Prepare Hiring Procedures & Policies Well in Advance of Placing a Want-Ad.

On the other side of the picture, employers should ask and verify several items in the application process. Many states require criminal record verification of employees. Although the process may be costly and impose additional paperwork, employers who have people in positions of confidence, or going into clients’ homes, or employees who must be bonded likely need to obtain this information. The business necessity in such cases is demonstrated by the criminal case example of the home health aide. Any request for criminal convictions information should be accompanied by a statement that a record will no necessarily bar employment and that factors such as the seriousness and nature of the crime, along with the time of the offense will be considered and evaluated.

Also, there are several screening procedures that employers can and should conduct. First, employers should conduct reference checks and ask applicants for an explanation of any “unemployed” time. Second, applications and any subsequent employment questionnaires should establish an enforceable policy that any false information is not only grounds for disqualification for a position, but, also cause for discharge if discovered after a hiring. Also, employers can require verification of basic information, perhaps with a drivers license or professional license or certification, or a follow-up telephone call. Finally, companies should establish a procedure checking list to assure that each of these procedures are followed, and, include this information in the applicant’s file.

In the end, to avoid legal liabilities in the screening and hiring of employees, it has become very important for employers to prepare hiring procedures and policies well in advance of placing the want-ad. It is certainly more costly in time, and in money, to face a lawsuit down the road either from some disgruntled applicant who did not get hired, or from a client injured in some way by the one who did.

Information that is provided here is NOT LEGAL ADVICE !

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